Last night we noted Fed District Court enjoins Wisconsin “John Doe” anti-conservative investigation.

Late this afternoon the U.S. Court of Appeals for the 7th Circuit issued a stay of the injunction, on procedural grounds which leave the District Court the opportunity to reinstate the injunction.

The issue for the appeal was that a “Notice of Appeal” of certain court rulings had been filed prior to the injunction being issued.  Once a Notice of Appeal is filed, it moves the case automatically to the Court of Appeals and the District Court no longer has jurisdiction, unless certain exceptions are met.

So the Court of Appeal basically said the District Court Judge didn’t have the case before him anymore, and couldn’t issue the injunction.

The Milwaukee Journal Sentinel reports:

After 24 hours of legal maneuvering in a politically charged investigation of Gov. Scott Walker and his allies, an appeals court late Wednesday handed prosecutors a victory, preventing for now the destruction of evidence from the case.

The three-judge panel of the 7th Circuit Court of Appeals in Chicago stayed U.S. District Court Rudolph Randa’s preliminary injunction from Tuesday stopping the John Doe investigation, saying he had overstepped his authority. The appeals court ruling also said Randa cannot order prosecutors to destroy evidence they have collected in the five-county probe.

Here’s the key part of the Appeals Court ruling:

Apostol v. Gallion, 870 F.2d 1335 (7th Cir. 1989), holds that, once a litigant files a notice of appeal, a district court may not take any further action in the suit unless it certifies that the appeal is frivolous. The district court failed to follow that rule when, despite the notice of appeal filed by several defendants, it entered a preliminary injunction. This court accordingly stays the injunction, and all further proceedings in the district court, until the judge has ruled definitively on the question posed by Apostol.

If the district court concludes that the appeal is non-frivolous with respect to the complaint’s request for injunctive relief under the doctrine of Ex parte Young, 209 U.S. 123 (1908), then this stay will continue in force until this court has resolved the appeal on the merits.

If the district court concludes that the appeal is frivolous with respect to the complaint’s request for injunctive relief under the doctrine of Ex parte Young, then proceedings in the district court may resume, though appellants would be entitled to renew in this court their request for a stay.

Whether or not the district court determines that the appeal is frivolous, the portions of the injunction that require defendants to return or destroy documents will remain stayed as long as proceedings continue in this court.

According to the Journal Sentinel, the targets of the probe already have asked the District Court Judge to make the necessary finding that the appeal is frivolous.

So we may know soon whether the injunction gets reinstated, and the Appeals Court again will rule on the merits whether to stay the injunction.

UPDATE 5-8-2014: Here’s the letter filed after the Court of Appeals ruled, asking the District Court to certify the appeal as frivolous and to reenter the injunction:

Wisconsin John Doe Case - Plaintiffs letter requesting certification of frivolous appeal


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